IN THE MATTER OF A JOHN DOE GRAND JURY INVESTIGATION.

428 Mass. 1016

October 19, 1998

The defendant appeals from a determination by a single justice of this court that he was not entitled to a copy of the records of the immunity proceeding involving the main witness against him. The defendant's appellate counsel filed a motion asking the single justice to terminate the order impounding the record and transcript involving a grant of immunity to the witness. The defendant's counsel claimed that he intended to file a motion for a new trial based on ineffective assistance of counsel and that a copy of the immunity proceeding was necessary for that purpose.

The single justice denied the motion but allowed defense counsel to examine the impounded record and transcript. The single justice indicated that he would consider a motion for reconsideration if defense counsel found anything useful in the record. Defense counsel, after examining the file, claimed that there was exculpatory evidence in the immunity proceeding. He asserted that an affidavit by the assistant district attorney describing statements by another witness who was not immunized was consistent with the defendant's defense and with the statements made by the immunized witness prior to the grant of immunity. Defense counsel indicated that the prosecutor's description of the testimony of the nonimmunized witness was consistent with that witness's grand jury testimony and with the statements made by the witness prior to the grant of immunity in the police reports. The defense in the criminal case had been provided the grand jury minutes and the police reports. The single justice then denied the motion to reconsider. There was no error.

Page 1017

The defendant has not shown that the immunity proceeding contained anything material to his defense. He had all the information contained in the immunity proceeding prior to trial from other sources. Moreover, contrary to his argument, the defendant had access to the immunity proceeding because the single justice granted access to the immunity papers. The single justice merely rejected the defendant's request that he be provided a copy of the immunity proceeding. The defendant's claim that he should have been informed of any promises or inducements given to the immunized witness is part of the criminal case, not the immunity proceeding.

Judgment affirmed.

John H. Cunha, Jr, for the defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.